The Journal of Appellate Practice and Process The Journal of Appellate Practice and Process

Volume 11 Issue 1 Article 5

2010

State Supreme Court Opinions as Law Development State Supreme Court Opinions as Law Development

Victor Eugene Flango

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STATE SUPREME COURT OPINIONSAS LAW DEVELOPMENT

Victor Eugene Flango*

I. KEY ROLES OF APPELLATE COURTS

The controversy over Justice Sotomayor's statement thatthe "Court of Appeals is where policy is made" illustrates thatthere is still confusion over the role of appellate courts.' Thatconfusion is exacerbated by the recent movement towardmeasuring judicial productivity by opinion production, as notedbelow.

Appellate courts have two primary functions: "errorcorrection" to ensure that law is interpreted correctly andconsistently and "law making" to provide a means for thedevelopment of law through their decisions and explanations ofdecisions.2 In states with only one appellate court, that one courtmust perform both functions. In states with two levels ofappellate courts, the intermediate appellate court is oftenassigned the error-correcting role and the court of last resort,most often called the supreme court,3 is primarily concerned

* Executive Director, Program Resource Development, National Center for State Courts.Opinions expressed in this article are those of the author and not necessarily those of theNational Center for State Courts. The author would like to express his appreciation toShauna Strickland for providing the data for this article in a useable format and to NoraSydow for her assistance in manipulating the tables and charts created in Microsoft Excelformat.

1. The story was widely reported; the quote here is from the Christian BroadcastingNetwork. See Conservatives Down on "Policy Maker" Sotomayor, http://www.cbn.com/cbnnews/politics/2009/May/Conservatives-Down-on-Policy-Maker-Sotomayor (May 27,2009) (accessed May 17, 2010; copy on file with Journal of Appellate Practice andProcess).

2. Daniel John Meador and Jordana Simone Bernstein, Appellate Courts in the UnitedStates 4 (West 1994).

3. The highest court in each state is usually called the Supreme Court. In the Districtof Columbia, Maryland, and New York, the Court of Last Resort is called the Court of

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with the development and declaration of law. Indeed, a primaryrationale for the creation of intermediate appellate courts is todispose of the bulk of appeals so that supreme courts can focuson cases with significant policy implications or cases of highsalience to the public. More than thirty years ago, a group ofscholars noted that they had observed

an emerging societal consensus that state supreme courtsshould not be passive, reactive bodies, which simplyapplied "the law" to correct "errors" or miscarriages ofjustice in individual cases, but that these courts should bepolicy-makers and, at least in some cases, legal innovators.4

As courts of last resort, state supreme courts have the finalauthority on issues most basic to people's lives. In the words ofProfessor Rosenblum:

[I]n the complex system of government we adopted, mostquestions of private law were left to the states. The nationalgovernment had almost no part in establishing ordeveloping the law of property, contracts, wills, personalinjury or damages.. . . [W]ithin the states it was often thecourts rather than the legislatures that actually formulatedsuch law.5

Moreover, state courts of last resort "interpret not only statelaws but also federal laws," and in the process, they "contributesignificantly to public policy." Justice Brennan acknowledgedas much when he wrote that "state courts have responded withmarvelous enthusiasm to many not-so-subtle invitations to fillthe constitutional gaps left by the decisions of the Supreme

Appeals; in Maine and Massachusetts the highest court is called the Supreme JudicialCourt; and in West Virginia the highest court in the state is called the Supreme Court ofAppeals. The names "supreme court" and "court of last resort" will be usedinterchangeably here for any of these bodies.

4. Robert A. Kagan, Bliss Cartwright, Laurence M. Friedman & Stanton Wheeler,The Evolution of State Supreme Courts, 76 Mich. L. Rev. 961, 983 (1978); see also RobertLeflar Internal Operating Procedures of Appellate Courts 1-2, 5-6 (Am. B. Found. 1976)(noting that appeals are no longer "heard only for the purpose of correcting errorscommitted in trial courts" and that "the lawmaking function of appellate courts is moreclearly recognized").

5. Victor Rosenblum, Courts and Judges: Power and Politics, in The 50 States andTheir Local Governments 406 (James W. Fesler ed., Alfred A. Knopf 1967).

6. Paul Brace & Melinda Gann Hall, Comparing Courts Using the American States,83 Judicature 250, 253 (Mar.-Apr. 2000).

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Court."7 Professors Stumpf and Culver argue that the trendcontinued as the Burger and Rehnquist courts became moredeferential to state courts, with the Supreme Court "literallyinviting an increased activism in state judicial policy-making,and in many instances state supreme courts have displayed theirwillingness, if not at times their eagerness, to move into thevacuum."8

If this trend continues, the state supreme courts willincreasingly "'define the quality of life' in American states andcommunities."9 It is interesting to note that a very recent pollshowed that seventy-one percent of Americans say their statesupreme court should keep its ability to decide controversialissues, and sixty-eight percent believe that the courts either havethe appropriate amount of power or should be awarded evengreater power.' 0 (Only twenty-four percent thought the statelegislature and the governor should have more power over thecourts.)"

Another indication of state supreme courts' increased rolein policy making is the renewed interest in election of judgesand justices. According to Roger Warren, both a former judgeand a former president of the National Center for State Courts,

7. William J. Brennan, Jr., The Bill of Rights and the States: The Revival of StateConstitutions as Guardians of Individual Rights, 61 N.Y.U. L. Rev. 535, 549 (1986); seealso Assoc. Press, Brennan Says State Courts Protect Rights, Star-Banner (Ocala, Fla.)10A (Apr. 12, 1987). Justice Brennan intended to give a speech in which the quotedstatement also appears on April 26, 1987, but hoarseness prevented him from speaking thatnight; the text of the speech was nonetheless released to the press. Stuart Taylor, Jr.,Brennan Hails State Courts'Record on Liberty, 135 N.Y. Times A28 (Apr. 27, 1987).

8. Harry P. Stumpf & John H. Culver, The Politics of State Courts 137 (LongmanPublg. Group 1992). They state further that "despite the ebb and flow of state power, stateappellate courts remain major players in the overall growth of American law." Id.

9. Id. at 156 (quoting Elder Witt, State Supreme Courts: Tilting the Balance TowardChange, 1 Governing 30 (1988)).

10. The survey of 1,200 American adults was conducted by Princeton Survey ResearchAssociates International for the National Center for State Courts, and has a margin of errorof plus or minus 2.8 percent, nineteen times out of twenty. The poll was paid for by NCSC,the Pew Center on the States, and the State Justice Institute. Complete results, including areport from the pollsters, are available in .pdf format on the NCSC website. See NationalCenter for State Courts, Separate Branches, Shared Responsibilities: Highlights from anNCSC Public Opinion Survey, http://www.ncsc.org/Web%20Document%2OLibrary/PublicationsSeparateBranches.aspx (May 2009) (click "More" on summary page to reachsurvey results in .pdf form) (accessed May 17, 2010; copy of summary page on file withJournal of Appellate Practice and Process).

11. Id.

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[s]tate judicial elections have become increasingly likeelections for political office: expensive, contentious,partisan, political, and dominated by special interests. . . .Electing state court judges attuned to a particular specialinterest or ideology, and defeating those not so attuned, isincreasingly viewed by political parties and specialinterests as politics-and business-as usual.' 2

II. OPINIONS AS THE MECHANISM FOR DEVELOPING THE LAW

As the weakest branch of government, courts have no wayto enforce their will except through their powers of persuasion.Indeed, the following observation about the United StatesSupreme Court really applies to all courts of last resort: "Thepower of the Supreme Court manifests itself in many forms,including in structural prestige and the reputation of individualjustices, but is expressed through only one form: the writtenlegal opinion."' Thus, the appellate process requires that courtsprovide the reasons behind their decisions. In the words ofProfessor Stone, "[t]he legitimacy of the judicial branch restslargely on the responsibility of judges to explain and justify theirdecisions in opinions that can be publicly read, analyzed, and

12. Roger K. Warren, Politicizing America's State Courts: Critical Challenges Facingthe Judiciary, Cal. Cts. Rev. 6, 6 (Winter 2007). He also notes that campaign contributionsto candidates for state supreme courts increased more than 750 percent between 1990 and2004. Candidate fundraising broke records in nineteen states in 2000 and 2004, and at leastfour more states in 2006. Successful supreme court candidates now sometimes raise moremoney than gubernatorial or U.S. Senate candidates. Id. at 9. A related challenge,according to Warren, is that "judicial candidates are now free to-and are pressured to-announce their views on hot-button social and political issues" since Republican Party ofMinn. v. White, 536 U.S. 765 (2002), in which the Supreme Court held that a Minnesotacanon prohibiting a candidate from "'announcing his or her views on disputed legal orpolitical issues' violated a candidate's freedom of speech." Warren, supra this note, at 11(paraphrasing White, 536 U.S. at 768). As a result of White, Warren notes that SupremeCourt candidates "blatantly announced their views on abortion, gun possession, right tolife, gay marriage, and other disputed legal and political issues." Id. And, he notes, "[o]ncejudicial candidates were free to express their views," special interests distributedquestionnaires eliciting them. Id.

13. M. Todd Henderson, From Seriatim to Consensus and Back Again: A Theory ofDissent, http://www.law.uchicago.edulfiles/files/363.pdf, at 3 n. 15 (U. Chi. L. Sch., JohnM. Olin Program in L. & Econ., Working Paper Series, Oct. 2007) (accessed May 19,2010; copy on file with Journal of Appellate Practice and Process).

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criticized."' 4 Full opinions-those that offer a justification fordecisions and the reasoning behind them-guide the decisions oflower courts, and should be issued whenever the courtsannounce a new rule of law, resolve a conflict betweensubordinate courts, make a non-unanimous decision, or make adecision of substantial interest to the public.' 5 The followinganalysis and discussion, and the charts and tables that follow,will address both the factors relevant to the issuance of thoseopinions and their effects on the development of the law.

A. Does Opinion Production Vary Over Time?

1. Assessing Quantity and Quality

How many opinions per year are necessary to develop thelaw? Does the number of opinions per supreme court vary muchor is it relatively constant over time? In their study of sixteensupreme courts between 1870 and 1970, Kagan and hiscolleagues found that some supreme courts wrote as many as500 opinions per year, while others wrote fewer than 100.1 Theaverage did change over time, but within a comparatively smallrange: The average number of opinions per court issued in 1870was 131, continued to increase to its high point of 291 per statein 1915, and then decreased into the early 1970s.'1 ProfessorsStumpf and Culver observed that

as populations grew and state legislatures shrank from thetask of reforming their judicial systems along more modemlines, the number of written opinions of some of thesecourts rose to as high as 400 or 500 per year (e.g. Californiaand Michigan); for other state supreme courts (North

14. Geoffrey Stone, Chief Justice Roberts and the Role of the Supreme Court, http://uchicagolaw.typepad.com/faculty/2007/02chief justicejr.html#more (U. Chi. Faculty BlogFeb. 2, 2007) (accessed May 19, 2010; copy on file with Journal of Appellate Practice andProcess).

15. Paul D. Carrington, Daniel J. Meador & Maurice Rosenberg, Justice on Appeal 33-34 (West 1976).

16. Kagan et. al, supra n. 4, at 960-61.17. Stumpf & Culver, supra n. 8, at 137. The drop in average number of opinions was

even more dramatic in selected states: In North Carolina the decrease went from 440 in1910-1915 to 118 in 1970, while in Michigan the decrease went from 413 in 1885 toninety-six in 1970. Id.

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Carolina, Alabama, and Minnesota), this figure hovered18around 300 to 400 per year.

They concluded that the consequences of writing a relativelyhigh number of opinions are not positive, as doing so results in"less legal research undertaken in the writing of opinions, fewerdissents, shorter opinions, and an overall lower quality of outputthan these state courts had produced in earlier periods."l 9 Andthey point out that these courts' "capacity to articulate carefullylegal policy for the state, and nation, was thus seriouslyimpaired."2o

One conclusion that could be drawn from this research isthat if law development is the goal, an error-correction methodof evaluation is not appropriate. Consequently, it is notappropriate to evaluate productivity in courts of last resort basedupon opinion production or to rate states on number of opinionsper justice, just as it would not be appropriate to evaluate statelegislatures by number of bills enacted into law. The quality ofthe court decisions and the rationales for the decisions asdocumented in the opinion are the appropriate criteria. One greatdecision that breaks new ground, reconciles conflicts of laws, orsettles an area of law is worth more than a larger number of"routine" decisions that are justified by more or lessconventional lines of reasoning.

This would imply that the scholars who explicitly defineproductivity for appellate courts as "the number of opinions ajudge publishes in a year"21 should make a distinction betweenthe functions of courts of last resort and those of intermediateappellate courts. The statement that "[a]ll else equal, a judgewho publishes more opinions is better than a judge whopublishes fewer opinions,22 may be appropriate for intermediateappellate courts, which have the primary responsibility for errorcorrection, but it is not appropriate for courts of last resort,which are developing the law. This statement also appears to

18. Id. at 137.19. Id.20. Id.21. See Stephen J. Choi, Mitu Gulati & Eric A. Posner, Which States Have the Best

(and Worst) High Courts? http://www.law.uchicago.edu/Lawecon/index.htm, at 9 (U. Chi.L. Sch., John M. Olin Program in L. & Econ., Working Paper Series, May 2008) (accessedMay 19, 2010; copy on file with Journal of Appellate Practice and Process).

22. Id.

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attribute opinion production to judges, rather than to collegialcourts. If that is the case, and if the production of more opinionsis to be the measurement, a supreme court justice could be more"productive" by writing separate concurring or dissentingopinions, which would be counter to the primary function ofsupreme courts to clarify the law and reconcile conflicting

23interpretations.

2. A Snapshot of the Status Quo

As a baseline, what is the average number of opinionsissued in courts of last resort today? Before answering thatquestion, the definition of opinion used must be clarified. Kaganand his colleagues counted all opinions of at least one page inlength.24 The ideal would be to identify full written opinionsproviding a rationale for the courts' decisions. The NCSC'sCourt Statistics Project, in cooperation with the NationalConference of Appellate Court Clerks, has recentlyrecommended that the standard terms for opinion be "FullOpinion," "Memorandum Opinion," "Summary/DispositionalOrder," and "Other Opinion." Full opinion is defined as one inwhich there is "an expansive discussion and elaboration of themerits of the case or the defect or procedural error."25 Incontrast, a Memorandum opinion has only a "limited discussionof the merits of the case or the procedural determination" andthe Summary/Dispositional Order has very little discussion orcomment on the case.26

Unfortunately, this improved method of classification hasjust been adopted and the new terminology is not yet inwidespread use. Consequently, we are left with the moretraditional method of classification that emphasizes not thedistinction between a full reasoned opinion and a summaryjudgment, but rather the distinction between a signed and an

23. The authors do acknowledge that a judge who publishes more frequently mightwrite lower quality opinions. Id. at 10.

24. Kagan et al., supra n. 4, at 963. The authors note that this restriction caused them toexclude "very short memorandum opinions" from their study. Id. at 963 n. 4.

25. Court Statistics Project, National Center for State Courts, The New AppellateSection of the State Court Guide to Statistical Reporting-Caseload Highlights 4 (NCSCJan. 2009).

26. Id.

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unsigned opinion. Fortunately, in most cases signed opinions aremost likely to approximate full written opinions, whereas percurium opinions and memorandum opinions are likely to containshorter, more summary conclusions.

Of the fifty-four courts of last resort,28 an average oftwenty-two (between seventeen and twenty-six during thetwenty-year period of the study) report data on per curiamopinions,29 and that includes courts that report issuing no percuriam opinions. Only thirteen courts reported the number of percuriam opinions for at least fifteen of the twenty years studied,and most of those reported only a small number, with theaverage being seventy-five. The exception is the PennsylvaniaSupreme Court, which reported the largest number of per curiamopinions by far, an average of 2,772 annually over the eleven-year period during which it reported data. The next most prolificuser of per curiam opinions was the District of Columbia Courtof Appeals, which reported an average of 520 per curiamopinions during the twenty-year study period.

Table 130 reveals that the number of signed opinions isrelatively consistent from year to year among states, and even

27. Granted some appellate justices will recall the time when they might have written athirty-two-page per curium that settled a point of law in an area, but those are now veryunusual. For the most part, we will not be led too far astray by using "signed opinion" asthe operational definition for "full written opinion." See e.g. Robert J. Hume, The Impact ofJudicial Opinion Language on the Transmission of Federal Circuit Court Precedents, 43L. & Socy. Rev. 127, 133 (2009) ("It is true that per curiam, or unsigned, opinions aresometimes used in important cases to express the institutional view of a court or tosummarize the points of consensus among a fractured court.. . . But on the U.S. Courts ofAppeals per curiam opinions are used most commonly in unimportant cases, such assummary judgments and unpublished decisions.") (citations omitted); see also Howard J.Bashman, Per Curiam Opinions: What's the Point? http://www.law.com/jsp/article.jsp?id=900005559003 (Dec. 10, 2007) (pointing out that "at the federal appellate level, noestablished rules seem to exist concerning when an opinion will be designated per curiamin place of identifying the judge who has written the decision") (accessed May 19, 2010;copy on file with Journal ofAppellate Practice and Process).

28. Fifty states plus the District of Columbia and Commonwealth of Puerto Rico wouldseem to make fifty-two, but Oklahoma and Texas both have two courts of last resort-aSupreme Court with largely civil jurisdiction and a Court of Criminal Appeals.

29. The NCSC Court Statistics Project has gathered data on total dispositions, signedopinions, and per curiam opinions from courts of last resort for at least the past twentyyears, although per curiam opinions are not addressed in detail by this article.

30. Table 1 provides data on the signed opinions issued by supreme courts for thetwenty-year period 1987-2006. To be included on the table, courts of last resort must haveprovided data for at least fifteen of the twenty years studied as well as data for the then-

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more so within states. The number of signed opinions in courtsof last resort ranges from fifty-five (Delaware, 1988) to 861(Alabama, 1991) per year, with an overall average of 190opinions per year. Table 1 shows the average (mean) number ofsigned opinions per court, but also the standard deviation, whichmeasures the amount of variation in opinions within states fromyear to year. Note that the standard deviation for most states israther low. To compare opinion production among state supremecourts with different averages of opinion production per year, acoefficient of variability (the ratio of the standard deviation tothe size of the mean) was computed. Because the year-to-yearvariation was small, meaning that opinion production isrelatively consistent from year to year, it is unnecessary toconduct separate analyses for each year. The average number ofsigned opinions over the twenty years is a good summarystatistic for opinion production per supreme court.

Perhaps we should not be surprised that the number ofsigned opinions per court does not vary greatly. At the supremecourt level, the number of justices remains constant and thenumber of opinions that they can thoughtfully author has a limit.One prominent set of scholars says, in fact, that an appellatejustice can participate in 300 cases per year and can author 100opinions. Leflar's prescription is even more stringent:

[N]o appellate judge, however competent, can write morethan 35, or conceivably 40, full-scale publishable opinionsin a year. The effort to write more risks shoddy opinionsand the shirking other duties, including the preparation ofper curiam and memorandum opinions in less important

32cases.In sum, a fixed number of justices have a finite capacity to writefull opinions, especially in complex cases, and once that limit isreached the number of signed opinions per justice mustnecessarily level off.

most recent five-year period, which was 2002 to 2006. Forty-one high courts from fortystates had data sufficiently complete and clean to be included in the table.

31. Carrington, Meador & Rosenberg, supra n. 15, at 145-46.32. Robert A. Leflar, Delay in Appellate Courts, in John A. Martin & Elizabeth A.

Prescott, Appellate Court Delay 151 (NCSC 1981).

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B. Does Opinion Production Vary by Number ofAppellateCourts?

Although the average number of opinions per state varieswithin a fairly narrow band, one might expect a significantdifference between supreme courts over intermediate appellatecourts versus those in states that have only one appellate court.The highest court in the second group of states must fulfill boththe error-correcting and law-development functions of appellatecourts,33 while the discretionary jurisdiction of the courts in thefirst group "ensures that the typical case decided by the justiceswill be far more legally ambiguous and more politicall salientthan the typical cases found on other courts' dockets." Thesecomplex cases require more time to research and morethoughtful opinion writing. With discretionary jurisdiction,courts of last resort could focus on a smaller number of cases,"compose longer, more scholarly opinions; issue more dissents;and generally improve their abilit7 to develop legal doctrinemore thoughtfully for their states."3

The figures that follow this article's text illustrate howsigned opinions vary by number of appellate courts over thetwenty-year time period of this study. Figure 1 is a line graphshowing the number of opinions per year from courts of lastresort in states that have multiple intermediate appellate courtsthat are distributed by region. With multiple intermediateappellate courts to decide the vast majority of cases, the supremecourts in these states can focus on developing the law, includingthe articulation of new principles, the resolution of conflictsamong statutory laws, and the resolution of conflicts ininterpretation among intermediate appellate courts. Figure 2 is asimilar graph, but the data are drawn from courts of last resort instates having a single intermediate appellate court. Figure 3

33. In fact, intermediate appellate courts were created to guarantee litigants at least oneappeal while providing the supreme courts discretion to choose the appeals they hear.

34. Stefanie A. Lindquist & David E. Klein, The Influence of JurisprudentialConsiderations on Supreme Court Decisionmaking: A Study of Conflict Cases, 40 L. &Socy. Rev. 135, 139 (Mar. 2006) (referring to the discretionary jurisdiction of the UnitedStates Supreme Court).

35. Stumpf & Culver, supra n. 8, at 137.

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shows signed opinions from the highest courts in states that donot have an intermediate appellate court.

Figure 4 displays the average number of signed opinionsper state court of last resort separated into two groups: singleappellate courts and supreme courts in states with one or moreintermediate appellate courts. The hypothesis would be thatsingle-tier appellate courts would write more opinions becausethey need to perform both the error-correcting and law-development functions, whereas supreme courts in states withintermediate appellate courts could write fewer because, afterall, the litigants already had the benefit of one appeal even iftheir cases were not heard by their states' highest courts.Surprisingly, however, single appellate courts did not write moresigned opinions than supreme courts in states with intermediateappellate courts. Indeed, the average number of signed opinionsfor single appellate courts was 171, and the average number ofsigned opinions in courts of last resort in two-tiered systems was187. In light of these results, it would appear that courts of lastresort are similar in their production of signed opinions,regardless of whether they are part of a court system thatincludes only a single appellate court or one that includesmultiple appellate courts.

One possible reason for this surprising result may be thelower volume of appeals in single-appellate-court states andconsequently the lower number of signed opinions from thosecourts, but that would presume a relatively constant ratio ofsigned opinions per disposition. Is that the case or does theproportion of signed opinions diminish as the number ofappeals-hence dispositions-increases?

Table 2 shows the ratio of signed opinions to dispositions.Here it appears as if the high courts in large states do dispose ofmore cases per year, which means that the percentage of casesdisposed of by signed opinion is smaller in these states. Table 2indicates that the California, Illinois, and Michigan SupremeCourts, the New York Court of Appeals, and the Texas Court ofCriminal Appeals dispose of less than fifty percent of their casesby signed opinions, whereas the Supreme Courts of Arkansas,Connecticut, Montana, Nebraska, and North Dakota dispose ofmore than half of all of their cases by signed opinion. In otherwords, the relative number of signed opinions per court remains

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relatively constant regardless of the number of total appealsdisposed of by the state's highest court.

C. Does Opinion Production Vary by Number ofJustices?

It would seem logical to assume that collegial courts witheven a few more members would have the capability to writemore opinions than smaller courts. Most state courts of lastresort have seven members, but some do have five, and somefewer follow the United States Supreme Court with ninemembers.36 Figure 5 separates the average number of signedopinions by the number of justices on each court. There is atendency for larger courts to issue more signed opinions, but thevariation within categories is as dramatic as the variation amongcourts of different sizes. Five-judge courts issue an average of167.5 opinions per year, seven-judge courts issue an average of183.9 opinions per year, and nine-judge courts issue an averageof 269.5 opinions per year. The higher average in the nine-judgecourts, however, is largely driven by the Alabama andMississippi Supreme Courts, which not only have nine justices,but also the ability to sit in panels.37 The Alabama Supreme

36. Most state supreme courts have seven members, eighteen have five members, andonly seven courts of last resort have nine justices: In addition to the Supreme Court ofAlabama, there is the District of Columbia Court of Appeals, the Mississippi SupremeCourt, the Supreme Court of Oklahoma, the Texas Court of Criminal Appeals, the SupremeCourt of Texas, and the Washington State Supreme Court.

37. Nine-justice state courts of last resort that may sit in panels are Alabama, District ofColumbia, Mississippi, and Washington. See National Center for State Courts, CourtStatistics Project, Structure Charts, http://www.ncsconline.org/DResearch/csp/CSPMainPage.html (click "Access Charts" link in "State Court Structure Charts" box on main

page, then click outline of desired state) (accessed May 20, 2010; copy of "State CourtStructure Charts" page on file with Journal of Appellate Practice and Process). TheOklahoma and Texas Supreme Courts have nine justices who sit en banc, but those statesboth also have second courts of last resort that handle criminal matters and that may also sitin panels. Id. Most seven-justice courts of last resort sit en banc; the exceptions that usepanels for at least some types of cases are Connecticut, Massachusetts, Nevada, andVirginia. Id. The Supreme Court of Delaware-a five-justice court-also uses panels. Id.;see also David Rottman & Shauna Strickland, State Court Organization 2004 at 138(Bureau of Just. Statistics 2006) (including a reference to the five-member New Mexicocourt's "monthly three-judge panel selected to consider and decide substantive and policy-implicating procedural motions and other matters"). The Rhode Island Supreme Courtreports that court rules permit its members to sit in panels of three, but the general practiceis to hear all matters en banc. Id. at 139. The Vermont Supreme court sits in panels oncases that are "fast tracked." Id. at 138.

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Court may "exercise all of its powers" in divisions of fivejudges, who must reach a unanimous decision or the case goes tothe court as a whole.3 8 Similarly the Mississippi Supreme Courtsits in panels of three justices.39 On the other hand, supremecourts in Connecticut, Montana, Nevada, and Delaware mayalso sit in panels, but these courts are not above average inopinion production.

III. CONCLUSIONS AND IMPLICATIONS

The information displayed in the charts and graphs thataccompany this article enable us to draw several importantconclusions:

The number of opinions produced in courts of last resort isrelatively constant from year to year and is not correlated withthe number of appeals disposed. (Although per curiam opinionswere not a focus of the research supporting this paper, availableinformation indicates that they are used sparingly by most courtsof last resort.)

Single appellate courts do not produce more signedopinions on average than courts of last resort sitting in states thatalso have intermediate appellate courts.

Supreme courts with more justices write only marginallymore opinions than appellate courts with fewer justices.Although the difference is not as striking, courts of last resortthat sit in panels may issue more opinions than supreme courtsthat decide all cases en banc.

Those charts and graphs also enable us to consider theimplications of the information that they present. Perhaps mostimportant is the realization that appellate courts have two rolesto play: error correction and law development. The obviouscorollary to this realization is the recognition that court

38. Ala. R. App. P. 16(a), (b) (available at http://judicial.alabama.gov/library/rues/ap16.pdf) (accessed May 20, 2010; copy on file with Journal of Appellate Practice andProcess).

39. In certain enumerated circumstances the panels may, however, refer matters to theSupreme Court as a whole, where they will be "considered and adjudged by the full Court."Miss. R. App. P. 24(a), (b) (available at http://www.mssc.state.ms.us/rules/msrulesofcourt/rules-of -appellate procedure.pdf) (accessed May 20, 2010; copy on file with Journal ofAppellate Practice and Process).

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performance measures must distinguish between these separateappellate roles.

The data presented here show us too that law developmentrequires selection of appropriate cases and then the articulationof reasons behind decisions, especially those that resolveconflicts of law, create new principles of law, more clearlyarticulate principles to guide lower-court decisions, and areintended to inform the legal community and the public at largeof the rationale for a particular decision.

Finally, because law development requires thoughtful,considered opinions, these data suggest that appellate courtsshould not be evaluated according to the quantity of opinionsproduced, but according to the quality of opinions produced,much in the way that legislatures should not be evaluatedaccording to the number of statutes passed, but according to thequality of laws enacted.

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APPENDIX FOLLOWS

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Table 1Court of Last Resort Si ned Opinions, 1987-2006

State Con 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998

Alabama SupremeCourt 668 672 751 703 861 738 745 499 430 333 264 307

Alaska Supreme Court 135 193 89 190 103 190 132 145 117 478 179

Arkansas Supreme Coort 358 378 345 373 424 435 424 448 413 379 419 379

California SupremecCourt 85 122 120 100 127 89 102 99 97 102 82 97

Colorado SuprerneCourt 238 244 221 237 227 216 181 192 233 193 214 187

Connecticut Supreme Court 233 230 224 246 253 193 185 185 183 178 165 174

Delaware SupremeCourt 61 55 65 77 53 72 54 66 60 70 82 72

Florida Suprerne Court 195 222 171 199 187 231 231 187 172 175 133 160

Georgia Sopree Cou 374 348 384 384 436 350 316 401 421 404 364 394

Hawaii SupremeCon 314 320 396 318 361 242 81 167 267 262 91 63

Illinois SupemeCourt 176 79 138 128 107 118 158

Indiana SuprerenCourt 363 328 365 219 204 160 139 147 119 124 204 290

Iowa Supreme Court 244 264 257 249 247 240 306 371 270 213

Kansas SpremeCourt 244 380 216 199 203 200 208 210 209 209 208 343

Louisiana SupremeCourt 145 149 137 Ill 91 120 150 76 126 86 70

Michigan Supreme Coon 108 79 68 71 66 75 90 108 95 109 88 121

Minnesota Supreme Coon 156 165 157 157 97 156 120 156 154 151 156

Mississippi supremeCourt 507 475 290 375 312 386 226 236 248 225 231 325

Monrana Supeme Court 359 363 356 387 331 324 437 368 392 372 384 254

Nebraska Supreme Coun 365 487 520 322 508 333 389 276 259 262 267 270

Nevada Supreme Court 142 116 164 155 149 174 177 164 177 169 161 169

New Hampshire SupremeCour 155 144 150 139 163 179 182 144 202 202 135 98

New Mexico Spreme Court 192 220 171 166 188 147 129 56 139 86 60 49

NewYork CourtofAppeals 109 119 118 120 112 118 138 128 184 139 129 106

North Carlina Supreme Court 160 188 119 93 118 99 126 137 152 120 84

North Dakota SupereeCour 249 268 278 281 278 282 225 292 254 259 257 199

Oregon SupremeCour 114 128 102 102 72 116 117 94 64 72 74

Pensylsania Supreme Court 299 268 281 209 299 284 190 165 204 204 207 198

Rhode sland Supreme Court 181 139 141 163 153 126 86 122 216 87

South Carolina Supreme Coon 169 123 457 178 244 233 206 503 557 436 315 166

SouthDakota SupremeCour 186 194 199 159 222 166 204 196 195 183 174 174

Tennessee Supere Court 184 182 182 157 161 211 222 254 296 378 334 339

Texas Supreme Court 93 93 68 66 119 127 145 146 236 183 179 222

Texas Ct. ofCrim. Appeals 214 235 163 170 201 206 198 156 127 130 140

Utah SupremeCourt 182 141 159 Ill 11 103 95 90 116 96 85

Vernon SupreeCort 117 217 221 211 186 138 125 108 94 112 Ill 78

Virginia SupremeCourt 149 183 215 164 144 145 142 168 162 162 131 159

Washington SupremeCourt 134 141 147 119 122 135 134 151 125 139 137 143

Wool Virginia Sup. CL of Appeals 244 249 281 278 274 263 220 275 261 272 188 260

Wisconsin Supreme Court 116 98 107 101 91 87 118 88 87 86 91 73

Wyoming SupremeCourt 196 178 252 161 189 209 188 167 241 180 178 181

LAW DEVELOPMENT IN STATE SUPREME COURT OPINIONS

Table 1Court of Last Resort Signed Opinions, 1987-2006

Slate court I

Alabama

Alaska

Arkansas

California

Colorado

Connecticur

Delaware

Florida

Georgia

Hawaii

Illinois

Indiana

lawn orm

Lanisiana

Michigano

Minnesota

Mississippi

Montanaa

Nebraska

Nevada

New Harpshire

New Mexio

New York

North Carolina

North Dakoa

Oregon

Pennsylvania

Rhode Island

South Carolina

Souh Dakota

Tennessee

Texas

Tes

Utah

Vermont

Virginia

Washington

West Virginia

Wisoonsin

SupenremComa

Supere Coua

SupremeConn

Supreme Coon

Supreme Cor

Suprem Cooun

Suprere Cooo

Sorere Coon

Supreme Court

Supreme Court

Supere Court

Suprm Court

Supreme Court

Supreme Coun

Suprere Coma

Supreme Cou

Supree Court

Soprer Court

Sup roCoon

Suprere Coma

Suprene Coon

SUprem Coon

Supreme Court

CoutofAppels

Supreme Coon

Supreme Court

Suprer Coon

Supreme Coon

Supeme Coun

Supreme Court

Supree Coun

Supreme Court

Supreme Coma

Ct. ofCrim. Appeals

Suprem Coua

Supreme Court

Suprene Court

Supere Com

Sup. C of Appeals

Supreme Coon

Wyoming Supreme Court

1 A2erage1999 2000 2001 2002 2003 2004 2009 2000 II 9.06

307 473 438

153 170 149 182 139

304 246 321 301 290

88 123 103 101 123

185 93 112 121 85

174 144 120 180 190

62 44 53 71 67

93 191 95 81

394 371 403 364 421

88 59 49 191 69

104 144 130 131 113

186 248 183 195

307 210 107 180 171

183 374 306 312 249

81 62 112 23 15

85 83 79 49 S1

325

255

256

55

156

64

123

79

264

79

234

166

182

264

165

09

81

158

143

324

282

245

332

141

124

36

97

60

174

79

190

91

200

173

62

162

101

74

157

105

80

112

176 196

331

316 343

207 259

85 38

229 176

33

100

40 64

182 189

60

155 178

96 75

152 173

184 164

329 244

110 135

120 319

11

64 68

Iso 136

136 129

94 88

101 81

146

297

377

212

87

186

35

110

28

203

42

158

64

191

177

198

96

325

95

70

130

131

68

128

203 235 149 149 193 149

112

151

133

196

104

190

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Figure 4

Average Number of Signed Opinions in State Courts of Last Resort, 1987-20060 100 200 300 400

Courtsof-Last sorAlabama

AlaskaArkansasCaliforniaColorado

ConnecticutFlorida

GeorgiaHawaiiIllinois

IndianaIowa

KansasLouisianaMichigan

MinnesotaMississippi

NebraskaNewMexico

NewyorkNorth Carolina

OregonPennsylvania

South CarolinaTennesseeTexas(SC)

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VirginiaWashington

Wisconsin

Single ADellate CourtDelawareMontana

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North DakotaRhodelsland

South DakotaVermont

West VirginiaWyoming

LKF-)

133

500 600

I

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Figure 5Average Number of Signed Opinions in State Courts of Last Resort, 1987-2006

0 100 200 300 400 500Courtsw/9 Justices

AlabamaMississippi

TexasWashington

Courts w/ 7Justices Arkansas

CaliforniaColorado

ConnecticutFlorida

GeorgiaIllinois

IowaKansas

LouisianaMichigan

MinnesotaMontanaNebraska

NevadaNew York

North CarolinaOregon

PennsylvaniaTexas (Ct. of Crim....

VirginiaWisconsin

Justices AlaskaDelaware

HawaiiIndiana

North DakotaNew Hampshire

New MexicoRhode Island

South CarolinaSouth Dakota

TennesseeUtah

VermontWest Virginia

Wyoming

I -

- I - P -

_ _ a -l

-lillillll

m

600

I

illigiggi

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Figure 6Average Percentage of Signed Opinions/Dispositions In State Courts of Last Resort, 1987-2006 0 10 20 30 40 50 60 70 80

Courts W/ 9 JusticesAlabama

MississippiTexas !i

Washington

Courts w/ 7Justices Arkansas

CaliforniaColorado

ConnecticutFlorida

GeorgiaIllinois

IowaKansas

LouisianaMichigan

MinnesotaMontanaNebraska

NevadaNew York

North CarolinaOregon

PennsylvaniaTexas (Ct. of Crim....

Virginia -Wisconsin

Justices AlaskaDelaware

HawaiiIndiana

North DakotaNew Hampshire

NewMexicoRhode island

South CarolinaSouth Dakota

TennesseeUtah

VermontWest Virginia

Wyoming

135